· l7B note or other chose in action in favor of any assignee, '" '" '" unless such suit might have been in such cQurtto, recover the said contents, if no assignment ... ... "\jr' had been made." By omittil'1gaHpol"tions'of the statute not applicable/we find the questions concerninj:!; instruments paY8:ble to. bearer, actiqns by subseand made by corporations to .beeliminated'. statu,te ghresa r,ule which is clElar and unambiguous; it fits the case under consideration, and excludes it from the jurisdiction " , '. is and, the action will be without preJ to 8 8ctio,n in any pourt.
oOOH. W. D.M1.1I8our£,8t· Hl7NiOIP.u. OOJlPOaATIONs-l1)BDINANCB....USB
1800.>
or RtILROAJ) TRAcDl ' ,4 ,c",itY. giv!ng, railrol\d a !-'1I;(ht of on tllat itaHow otller road. tb.8ltileofits tr'aclCiI:W.ithin the,city not bind itt{) allow rQad.!\he.'use of1raok8:"lai11 SlDce the ordinlinC8 wentiDto. effect. the l'lj(ht Is binding in respect to. traoks 011 .right of way.
Chicago,St.Paul& Railway ti:) 90mpel City, St. J oseph Bluffs Railr()ad. QOIDPf\P;Y . ,to. use of the defendant's w,itlliptheUl)lits' of the city of St. Joseph. A prelim41ary mandatory :38 Fed. R:ep.68. Thecase.,isnow on final heariJ,lg., ,Decre.e fo,plaintiff 8S to a, of its qlaim. Ferry &!taqwrl.Qm; for pllllntifi'·. , : J.,M. & for defendant.
,:
, This wa.s before us last.spring upon an rpandatory injunction. That: application was r.efnsed ... 38 58. 'l'he ,case is now presented on pleadings and proqf in, the ppinion then filed that the limit of the city the defen!!ant, was that portion ,ofpl,e track 'thrqugh .the to which the right of way had been by .... caref?l, elaborate ,byc?l;tQsel on both. SIdes, the mtlIuabon· then gIven has strengthened into,collyic(jon. ,As 'noticed there. were" two ordipances. , The ,Pto#ded that, upon conditions naroed, other railroad . sho\:!ld We right" to run their locomotives, and 'trains over andupoDthes.ajd, St, Joseph & Council l3luffsRailroad;" 'And the second., daYl;! thereafter, these fou,r words: "Within sucbcjfy)imits." The rtgllt of w.a,y down .'to George was of a subscrip-
for. a',
CHICAGO, ST. P." X.'C. BY; CO. ".,XANIAS CITY, ··
J." C. B. B. 00.
·179
non, and accompanied by an obligation to pay certain damages by the city. Now, as then stated, it is familial' law that all contracts are to be interpreted in the light of surrounding facts, and general words and expressions may often be limited thereby. Nash v. Towne, 5 Wall. 689; Merriam v. U. S., 107 U. S. 437, 2 Sup. Ct. Rep. 5360 The St. Joseph & Council Bluffs Company was organized with a view of building a road from Council Bluffs to St. Joseph. Tl'le city, by the first ordinance, gave it the right to enter the city, and come as far as George alley, with a proviso that other companies might use its road. Obviously, the natural interpretation of that was the whole which it was chartered to build. The second ordinance was unquestionably a limitation, and clearly reduced the right of use from the entire line to that part within the city limits·. As from George alley northward was all of the road within the city limits contemplated, was all to which the right of way was given, was expressly the subject-matter of the ordinance, the provision for use had reference to that portion. It would be strange if the parties contracting a limited right of way could be understood as having in view other linell of road, and different rights of way, to be acquired under subsequent ordinances or subsequent legislations, or from consolidation with companies having other and different rights. General words and expressions in contracts and statutes ate almost always conflidered as limited byepecial words and expressions, and that which is obviously in the thought of parties the subject-matter of a contract is not to be broadened by mere general expressions, unless, from the language and surrounding circumstances, it seems imperative that it be so broadened. As I suggested in the former opinion, suppose, instead of being a mere matter ofcity ordinance, the legislature had, in granting this charter to build the road from St. Joseph to Council Bluffs, burdened it with the provision that other roads should have the privilege of using that portion of the track within the state of Missouri, would not that burden be limited to the track whiQh, by that legislation, it was authorized to build? And if subsequently the company received power to build from St. JOlleph to St. Louis,' could it be fairly contended that this new road, built under a new grant of power, was burdened with the same obligation which rested upon thetrack northward from St. Joseph to the state line? The more I have reflected on this, the more strongly am I convinced that the burden assumed was limited to the right given, and that all that was meant by the addition of the words "within said city limits" was to reduce the burden from the entire line to that portion of the road within the eity limits to which the right of way was by the ordinance given. At any rate, the meaning is doubtful, and equity does not enforce the specific performance of contracts whose terms and obligations are uncertain and doubtful.. With reference to that portion of the road down to George alley, it seems to me immaterial that there was in the beginning but one track, and that that is now sO occupied that it would not be safe to permit its US8!by another company. The defendant has built other: tracks on that right of way; and there is no question under th&.tes.tilllony but that 8OIneof these tracks might be :safely used by th&
Without prejudiae to>thebusinessof ·defendant. In tbe>iC8lle of OentralTruat 00. v. Wabash,Bt. L.1c. P. By. 00., 29 Fed. Repdi46, I considered at some length the power pfa court of equity in'casaof ,a ,contract of this kind,and I, have nothing to add to what Ltbete. said. I think a court has power to enforce a contract between parties of the same nature as those which we know, as a matter of generaLknowledge, railroad companies are constantly making and keeping. A,de,cree will therefore be entered decreeing to complainant the right to us.ethe track of the defendant from the northern limits of the city down as Jat all George alley; the balance of relief claimed by complainant will coste will be divided· . I
f1. ,
EIBTON. ,. " ",I,I,J! ,
(Cfrcuft .' "',:
Coon .,'
,"
61
.,',
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Si:!:th C1;rcuU, O*J)of 10,18a) . ·
No. sa. . .o1' OOLLATEJtJ.L-Col!lTRAO'l" paYable Was t.o it.l whole by insurance by the guar, pol1oiesOll eertain bul1Wngs for the benefit of t.he oredltor, and .tl,Yof A tbi;rd per80Q.for,thepart first due. Hela,·tbatthe creditor had a rigb.t to hOld the insuranee, mOlley. paid when thE! buildillgs .. burlled as seourity for thepilrt of thed4i'btnot. cov:ered by the guaranty, although not yet. due, and t.hat 't.hegUarallt.or was ,liable for t.he unpaid installments covered hy. his guaranty. v. 183, lLBuE...:REiliiASII:. '
l. BALJlhRE.TB:N'1'ION OP
Where s,.creditor whQse debt is secured by fire insuranCe policies, and in part by apert¥'DBl lIQClepts, from the an amount less than the face of \lie pol!c1ell,t,lie burden of proof lS on the guarantor to show that the creditorgotl88s thali:wudue him, and thereby releaSed the guarantor from his contract,. .. ..' '.' .. .'
:'
,
Where a' contract 'of .sale of furniture provides that the title shall remain in the priCll'ibl paid, and the furniture isinllured for his benefit, and he -pays, tM be ill to all the insurance mOlllilY coming from a loss, and the purchaser nas 110 interest in it. ' t,he premium" a charge to Lhe jury that the Beller has a right to apply so much oft.he insurance money as is necessary to pay tb.e balance due on thefurniturEl, and hold the surplus under the direction of the purchaser, toreduee theliabiUty;,of the ¥uarant.or of IIoDother <lebt due from the purchaser to the seller, is not to the prejudIce of thegUl\ralltor, nor, as to him, a groulld for er, . ,
4. BAllE. . If tlle purchaser
In Enor to the Circuit Court of the United States for the Western District ofMichiglln. At Law., Action inQ¥Umpait on· a contract of guaranty by Robert W. Elston Adolpb . H. Kortlander. Judgment for plaintiff. Deerror. .Affirmed. Stateu:umtby TAJ!'.U, .Oircuit Judge: , Elston, an alien, brought. his action In aBBUmpsit against AdQlpb of Michigan,on a written contract of . ·. .was Qw,uer of an hotel and tract of .land in Kent